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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WILLIAM C. MARTIN, 

 CASE NO. 2:12-CV-878 

 Petitioner, JUDGE GEORGE C. SMITH 

 MAGISTRATE JUDGE ABEL 

 v. 

ERNIE MOORE, WARDEN 

LEBANON CORRECTIONAL 

INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner William C. Martin, a state prisoner, brings the action for a writ of habeas 

corpus under 28 U.S.C. §2254. This matter is before the Magistrate Judge on the petition, 

Respondent’s Return of Writ, and the exhibits of the parties. This case involves Martin’s 

convictions after a jury trial on two counts of rape, one count of kidnapping, and one count of 

felonious assault. The Ohio Tenth District Court of Appeals affirmed Petitioner’s convictions 

and sentence, and the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. Petitioner 

attempted to file an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B); 

however, the appellate court dismissed his application for failure to file a sworn statement in 

support, and the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. The petition 

alleges that Martin also filed a postconviction proceedings in the state trial court. The record 

before this Court does not reveal whether the trial court has ever ruled on that action. For the 

reasons that follow, the Magistrate Judge concludes that all of Petitioner’s claims are without 

merit or procedurally defaulted, and therefore RECOMMENDS that this action be DISMISSED. 

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Facts and Procedural History: 

 The Ohio Tenth District Court of Appeals summarized the facts and procedural history of 

this case as follows: 

The following is a recitation of the facts relative to appellant's 

convictions, which were adduced at trial. Appellant met A.C., the 

victim, in 2008, when she was retrieving some of her belongings 

from a friend that lived in appellant's apartment complex. 

Appellant introduced himself to appellant and asked for her phone 

number. A.C. refused to give appellant her phone number, but he 

subsequently acquired the same from A.C.'s daughter and began to 

call her. 

A.C. testified that she initially did not take or return appellant's 

calls, but began doing so because, if she did not, appellant would 

repeatedly call her. A.C. testified that on one occasion, she had 141 

missed calls from appellant in a 15-minute interval. A.C. knew that 

appellant wanted a romantic relationship but testified that she 

made it clear to appellant that she was not interested in him in that 

way. Eventually, A.C. broke off contact with appellant in late 2008 

because he would not take no for an answer. 

The two, however, were in contact again in 2009. In early February, police were called following an altercation between A.C. 

and appellant. According to A.C., she had just left the Hard Road 

Café and was walking down Hard Road when appellant approached her and then began to grab at her and drag her towards his apartment complex. A slight physical altercation ensued, leaving A.C. 

with no apparent injuries but left appellant with a bloody lip. No 

arrests were made as a result of this incident. 

On February 18, 2009, the date of the incident, A.C. had spoken to 

appellant on the phone and disclosed that she would be going to a 

bar with one of her girlfriends later that day. While A.C. was at the 

bar, appellant showed up. The group drank beer and played pool. 

A.C. testified that, as they were leaving, appellant asked A.C. to 

give him a ride home and offered her $20 for gas. 

A.C. drove appellant to his apartment, where she went inside to use 

the bathroom and get the money offered to her. As she left the 

bathroom, A.C. testified that appellant punched her in the face and 

cursed at her. He then forced her to the floor and began to pull her 

clothes off. A.C. struggled with appellant and tried to keep him 

from ripping her clothes off but was unsuccessful. A.C. testified 

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that, for the next four hours, appellant forced her to submit to 

vaginal and anal intercourse and also penetrated her vagina with 

his tongue. During this time, appellant also repeatedly struck A.C., 

choked her, threatened and jabbed her with a butter knife, and also 

told A.C. that he was going to kill her. A.C. also testified that appellant had spilt her lip open, which caused bleeding, and that 

throughout the attack, appellant kept making her wash the blood 

off her face. 

A.C. attempted to escape several times but was finally successful 

when appellant went to make a phone call to call in sick to work. 

While appellant was on the phone, A.C. broke free, pulled on her 

shirt and jeans, and ran out the door. A.C. knocked on several 

doors in the complex seeking assistance, one of which was the 

apartment of Tracy Becknell. 

Ms. Becknell testified that she heard A.C. yelling, “Help, help me, 

somebody please help me. He is coming after me. Somebody 

please let me in. Help me.” (Tr. 93.) Ms. Becknell described A.C.'s 

screaming as “bone-chilling” and described A.C. as being 

“terrified.” (Tr. 93.) Although scared to open her door, Ms. Becknell listened to her conscience and did so. When she opened her 

door, Ms. Becknell stated that A.C. had a black eye, was carrying 

her bra, did not have any shoes on, and appeared to be “very 

scared.” (Tr. 94.) Ms. Becknell called 911 and told the operator 

that she had just let someone into her apartment that had been 

raped. 

Police and emergency personnel responded within ten minutes. 

Officer Jonathon Hall, a 15-year veteran with the Columbus 

Division of Police, testified that A.C. appeared to be “very hysterical” and “very visibly upset.” (Tr. 104.) A.C., despite her hysteria, 

was able to communicate to Officer Hall that she had been raped. 

Officer Hall described A.C. as “disheveled,” had sustained 

bruising to her face, and was in a state of high agitation. (Tr. 107.) 

Paramedic Robert Dickson was present at the scene. Mr. Dickson 

testified that A.C. had injuries to the left side of her face and that 

she complained of pain to the left side of her jaw, numbness on her 

left side, blurred vision in her left eye, loss of hearing in her left 

ear, rectal pain, and neck and back pain. Mr. Dickson described 

A.C. as anxious and fearful. Mr. Dickson placed A .C. in a cervical 

collar and, after placing her on a backboard transported her to 

Riverside Methodist Hospital (“Riverside”). 

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Janet Baatz, a registered nurse and sexual assault nurse examiner, 

conducted an examination of A.C. upon her arrival. Ms. Baatz 

noted that A.C. had bruises “all over” her head and face, and a 

“marking on her neck like she was strangled.” (Tr. 127.) A.C. cried 

throughout her interview with Ms. Baatz, during which she told 

Ms. Baatz that there had been penetration to her vagina and rectum, although appellant did not ejaculate, and that appellant had 

used his mouth all over her body. Ms. Baatz testified that A.C.'s injuries were consistent with the history she provided. Ms. Baatz 

explained that there were abrasions and bruising on A.C.'s posterior fourchette, and that this injury was indicative of the use of 

force. 

A CAT scan was performed on A.C. and revealed that she suffered 

a subdural hematoma. Dr. Joseph McElderly, who treated A.C. at 

Riverside, testified that a subdural hematoma is caused by blunt 

force trauma to the head that lacerated blood vessels in the brain. 

Because the injury can be life threatening, A.C. was admitted to 

the neurology intensive care unit. 

Sergeant Eric David, a 15-year veteran with the Columbus Division of Police, testified that he was dispatched to the apartment 

complex. Once there, he proceeded to appellant's apartment and 

pounded at the door. No one answered, despite repeated pounds on 

the door and the announcement of police presence, but Sergeant 

David heard some shuffling inside. At that point, Sergeant David 

forced entry into appellant's apartment. Sergeant David explained 

that, with the crime alleged, he had a fear about the destruction of 

evidence. Upon entry, Sergeant David found appellant lying 

facedown, approximately five to six feet in front of the door, next 

to a couch. Officers immediately went to restrain appellant, who, 

Sergeant David testified, acted as if he had just been woken up. 

Inside, Sergeant David noted that A.C.'s shoes and broken pieces 

of a cell phone were present in the apartment. 

Detective Amy Welsh attempted to question appellant after his 

arrest, but appellant was not cooperative. Appellant would not sign 

a verification that Detective Welsh had read him his Miranda 

rights, nor would he answer any questions. At the point Detective 

Welsh indicated that the interview was over, however, appellant 

began “yelling profanities and racial slurs” at Detective Welsh. 

(Tr. 235.) He told Detective Welsh that she was “nothing but a 

white bitch, and that he was only in there [jail] because his 

girlfriend was white and he was a nigger, and that is the only 

reason why we were in there and that was the only reason why he 

was investigated.” (Tr. 235.) 

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Appellant testified at trial and gave a different version of the 

events. According to appellant, he and A.C. were involved in a 

romantic relationship and that A.C. frequently would spend the 

night at his apartment. Appellant testified that on the day of the incident, he and A.C. had gone to several bars, one right after the 

other, the last of which was Spoonz. They left Spoonz and proceeded to appellant's apartment, arriving at about 9:00 p.m. Once 

inside the apartment, appellant stated that he felt sick and vomited. 

A.C. was on the couch texting someone. While she was texting, 

appellant went to the laundry room to put the shirt in the washer 

because he had vomited on himself. Appellant testified that, when 

he got back to the apartment, A.C. had stepped out and left her 

phone on the heater so appellant picked it up. Appellant testified 

that A .C. returned to the apartment with a cigar so that she could 

roll a blunt and went to retrieve a knife to cut the cigar for the 

blunt. 

Appellant stated that he then placed a call to his boss to call in 

sick. A.C. became angry and wanted to know who appellant was 

talking to on the phone. A.C. then snatched the phone from his 

hand and threw it against the wall. The two proceeded to argue, 

and A.C. demanded her phone back from appellant. Appellant 

testified that he told A.C. he was not going to give her phone back 

to her, which prompted A.C. to slash appellant in the arm with the 

knife she had been using to make the blunt. Appellant claimed he 

then grabbed A.C. by the arm, grabbed the knife, and “rushed her 

to the floor.” (Tr. 368.) The two then “tussled for a little bit,” after 

which appellant picked A.C. up and “threw her out of [his] home.” 

(Tr. 368.) In response to further questioning, appellant denied 

having raped and strangled A.C. and could not explain A.C.'s other 

injuries. 

The case was submitted to a jury, which found appellant guilty of 

all counts. The trial court sentenced appellant to: ten years on each 

count of the rape counts, to be served consecutively, ten years on 

the kidnapping count, to be served concurrent to the rape counts, 

and eight years on the felonious assault count, to be served 

consecutive to the rape counts, for a total sentence of 28 years of 

incarceration. 

Appellant filed a timely appeal, asserting the following three 

assignments of error for our review: 

I. THE TRIAL COURT ERRED AND DEPRIVED 

APPELLANT OF DUE PROCESS OF LAW AS 

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GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION 

TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF RAPE, KIDNAPPING 

AND FELONIOUS ASSAULT AS THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE. 

II. APPELLANT WAS DEPRIVED OF HIS 

RIGHT TO BE PRESENT AND TO THE PRESENCE AND ASSISTANCE OF HIS COUNSEL 

DURING A CRITICAL STAGE OF HIS JURY 

TRIAL, AND HIS RIGHT TO DUE PROCESS 

AND A FUNDAMENTALLY FAIR JURY TRIAL 

AS REQUIRED BY THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 

ONE SECTIONS FIVE, TEN AND SIXTEEN OF 

THE OHIO CONSTITUTION AND CRIMINAL 

RULE 43(A). 

III. THE TRIAL COURT ERRED BY IMPOSING 

CONSECUTIVE SENTENCES WITHOUT 

MAKING THE REQUISITE FACTUAL FINDINGS; THEREBY DEPRIVING APPELLANT OF 

DUE PROCESS OF LAW AS GUARANTEED BY 

THE FOURTEENTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO 

CONSTITUTION. 

State v. Martin, No. 10AP-295, 2010 WL 4968638, at *1-4 (Ohio 10th App. Dist. Dec. 7, 2010). 

On December 7. 2010. The appellate court affirmed the trial court’s judgment. Id. Petitioner did 

not timely appeal to the Ohio Supreme Court; however, on April 20, 2011, the Ohio 

Supreme Court granted his motion for a delayed appeal. State v. Martin, 128 Ohio St.3d 1457 

(2011). On September 21, 2011, the Ohio Supreme Court dismissed the appeal. State v. Martin, 

129 Ohio St.3d 1474 (2011). 

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 Petitioner also pursued postconviction relief. On November 9, 2010, he filed a postconviction action in the trial court, in which he asserted he was denied effective assistance of 

counsel. Exhibit 15 to Return of Writ. Respondent indicates that it does not appear that the trial 

court ever ruled on this motion. Return of Writ, PageID #91.1

 

 On March 7, 2011, Petitioner also filed an application to reopen the appeal pursuant to 

Ohio Appellate Rule 26(B). He asserted that he was denied effective assistance of appellate 

counsel because his attorney failed to raise on appeal the following claims: 

1. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL AS GUARANTEED BY THE FIFTH, SIXTH, 

EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL FAILED TO OBJECT TO PROSECUTION MISCONDUCT, INFLAMATORY REMARKS, LIES ALSO TRIAL COUNSELS 

(sic) REMARKS AND [illegible] TO HAVE EXPERT D.N.A. 

TESTING DONE AND NOT TO LET APPELLANT BE AT ALL 

STAGES OF HIS TRIAL. 

2. APPELLANT (sic) COUNSEL WAS INEFFECTIVE FOR 

NOT RAISING THE ISSUE OF INEFFECTIVE TRIAL COUNSEL TELLING THE JURY TO FIND APPELLANT GUILTY 

FOR FELONIOUS ASSAULT AND NOT TESTING OR HAVING D.N.A. EXPERT TEST THE DNA ON THE CLOTHING 

AND KNIFE AND HAVING APPELLANT PRESENCE AT A 

CRITICAL STAGE OF TRIAL DENYING APPELANT (sic) OF 

5TH, 8TH AND 14TH AMENDMENT. 

3. APPELLANT (sic) COUNSEL WAS INEFFECTIVE FOR 

NOT RAISING ISSUE OF PROSECUTING ATTORNEY’S REMARKS DURING OPENING STATEMENT, AND FURTHER 

LIEING CLOSING ARGUMENT (sic) CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND 

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. 

                                                            

1 Petitioner did not raise, in the postconviction proceedings, any of the same claims he raises 

herein. See Exhibit 15 to Return of Writ. 

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4. APPELLANT (sic) COUNSEL WAS INEFFECTIVE FOR 

NOT RAISING THE ISSUE OF ABUSE OF DISCRETION BY 

COURT FOR ALLOWING EXPERT WITNESS TESTIMONY. 

Exhibit 17 to Return of Writ. On June 28, 2011, the appellate court denied Petitioner’s Rule 

26(B) application for failing to file a sworn statement as required under Ohio Appellate Rule 

26(B)(2)(d). Exhibit 20 to Return of Writ. The appellate court denied Petitioner’s motions for 

reconsideration of that decision. Exhibits 22, 25 to Return of Writ. On September 5, 2012, the 

Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Martin, 132 Ohio St.3d 

1517 (2012). 

 On September 25, 2012, Petitioner filed the instant pro se petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in 

violation of the Constitution of the United States based upon the following grounds: 

1. The trial court erred and deprived appellant of due process of 

law as guaranteed by the 14th Amendment to the U.S. 

Constitution and Article I Section 10 of the Ohio Constitution 

by finding him guilty of rape, kidnapping and felonious assault 

as these verdicts were not supported by sufficient evidence and 

were against the manifest weight of the evidence. 

2. Appellant was deprived of his right to be “present” and to the 

presence and assistance of his counsel during a “critical” stage 

of his jury trial and his right to due process and a fundamentally fair jury trial as required to by the 5th and 14th

Amendment to the United States Constitution and Article I 

Section 5, 8, 16 of the Ohio Constitution and Criminal Rule 

43(A). 

3. The trial court erred by imposing consecutive sentences 

without making the requisite factual findings thereby depriving 

appellant of due process of law as guaranteed by the 14th

Amendment to the U.S. Constitution and Article 1.16 of the 

Ohio Constitution and the 5th Amendment to the U.S. 

Constitution. 

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4. Ineffective assistance of counsel in violation of 5th, 6th and 14th

Amendment. 

5. Abuse of discretion which deprived appellant of a fair trial in 

violation of the 5th, 6th and 14th Amendment. 

6. Detective misconduct which deprived appellant of a fair trial of 

the 14th Amendment to the United States Constitution and 

comparable of the Ohio Constitution. 

7. Prosecutorial misconduct which deprived appellant of a fair 

trial in violation of the 14th Amendment to the United States 

Constitution and comparable provision of the Ohio Constitution. 

8. Appellant was deprived the effective assistance of appeals 

counsel on his direct appeal as guaranteed by the 5th and 6th

Amendment to the United States Constitution. Appellant did 

file a 26(B) on his appeals counsel for not properly presenting 

the assignment of error that contained merits that would have 

ensured that appellant’s conviction would have been reversed 

on his direct appeal. 1) Ineffective assistance of trial counsel 

for asking the jury to find appellant guilty in opening and 

closing arguments of felonious assault of a weapon. 

It is the position of the Respondent that Petitioner’s clams One and Four through Eight are 

procedurally defaulted or without merit. 

Claim One: 

In claims one and two, Petitioner asserts that the evidence was constitutionally insufficient to support his convictions. 

Respondent contends that Petitioner procedurally defaulted this claim by failing to timely 

appeal to the Ohio Supreme Court; however, the Ohio Supreme Court granted Petitioner’s 

motion for a delayed appeal. Consequently, petitioner has not fairly presented history federal 

constitutional claims to the Ohio courts, and this court cannot now consider those claims in 

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habeas corpus. Nonetheless, even if petitioner had fairly presented the claim to the Ohio courts, 

it plainly lacks merit. 

The state appellate court rejected this claim in relevant part as follows: 

[A]ppellant contends that his convictions were not supported by 

sufficient evidence and were against the manifest weight of the 

evidence. Specifically, appellant attacks A.C.'s credibility, asserting that she gave inconsistent and unbelievable testimony. 

*** 

The Supreme Court of Ohio delineated the role of an appellate 

court presented with a sufficiency of the evidence argument in 

State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the 

syllabus: 

An appellate court's function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the 

evidence admitted at trial to determine whether such evidence, if 

believed, would convince the average mind of the defendant's guilt 

beyond a reasonable doubt. The relevant inquiry is whether, after 

viewing the evidence in a light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of 

the crime proven beyond a reasonable doubt. * * * 

Whether the evidence is legally sufficient is a question of law, not 

fact. Thompkins at 386. Indeed, in determining the sufficiency of 

the evidence, an appellate court must give “full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.” Jackson v. Virginia

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789. Consequently, the 

weight of the evidence and the credibility of the witnesses are 

issues primarily determined by the trier of fact. State v. Yarbrough, 

95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79; State v. Thomas (1982), 

70 Ohio St.2d 79, 80. A verdict will not be disturbed unless, after 

viewing the evidence in the light most favorable to the prosecution, 

it is apparent that reasonable minds could not reach the conclusion 

reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 

484, 2001-Ohio-4; Jenks at 273. 

The jury convicted defendant of kidnapping, rape, and felonious 

assault. As to kidnapping, R.C. 2905.01 provides that “[n]o person 

by force, threat, or deception * * * shall remove another from the 

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place where the other person is found or restrain the liberty of the 

other person * * * [t]o facilitate the commission of any felony or 

flight thereafter [or][t]o engage in sexual activity * * * with the 

victim against the victim's will.” R.C. 2907.02(A)(2) proscribes 

rape and provides that “[n]o person shall engage in sexual conduct 

with another when the offender purposely compels the other 

person to submit by force or threat of force.” Vaginal intercourse is 

a form of sexual conduct. R.C. 2907.01(A). Regarding felonious 

assault, R.C. 2903.11(A)(1) provides that “[n]o person shall 

knowingly * * * [c]ause serious physical harm to another or 

another's unborn.” 

The basis for appellant's assigned error is that A.C .'s testimony is 

not credible. To that end, we note that we do not weigh credibility 

when considering an insufficiency of the evidence argument. Rather, the test is whether the evidence viewed in a light most favorable 

to the prosecution, if believed, would convince a rational trier of 

fact that appellant was guilty of kidnapping A.C., raping her, and 

assaulting her. In this case, A.C. testified that appellant raped and 

assaulted her over a four-hour period of time. She testified that 

appellant forced her to submit to vaginal and anal intercourse and 

that his mouth made contact to her genital area. A.C. also testified 

that appellant punched her in the face and strangled her. 

From this evidence, a reasonable trier of fact could have found the 

elements of kidnapping, rape, and felonious assault were satisfied 

beyond a reasonable doubt. Therefore, we find appellant's convictions are supported by sufficient evidence. 

 *** 

A.C. gave inconsistent testimony . . .[A]ppellant contends that 

A.C. characterized appellant as a stalker but also testified that he 

was her friend. Appellant also points to A.C.'s testimony in which 

she stated that appellant held her against her will for hours and that 

he inflicted injuries upon her that caused her to bleed, but no blood 

was located in the apartment by the police during their investigation. These discrepancies, however, do not render A.C.'s testimony not credible as a matter of law. . . . 

[T]he jury considered these inconsistencies in evaluating A.C.'s 

credibility. The trier of fact is in the best position to take into 

account inconsistencies, along with the witnesses' manner and 

demeanor, in determining the witnesses' credibility. Columbus v. 

Dials, 10th Dist. No. 04AP-1099, 2005-Ohio-6305, ¶ 73; see also 

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State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58. 

The jury obviously chose to believe A.C.'s version of events, and 

we will not substitute our judgment for that of the trier of fact. 

State v. Day, 10th Dist. No. 04AP-332, 2005-Ohio359, ¶ 17-19. 

Moreover, A.C.'s testimony was largely consistent. In addition, 

Ms. Baatz testified that A.C.'s injuries were consistent with the 

history that A.C. had provided and that the abrasions and bruising 

on A.C.'s posterior fourchette was indicative of the use of force 

during intercourse. This is not the exceptional case in which the 

evidence weighs heavily against the convictions. 

Based on the foregoing, appellant's convictions are supported by 

sufficient evidence[.] 

State v. Martin, 2010 WL 4968638, at *4-7. 

The factual findings of the state appellate court are presumed to be correct: 

In a proceeding instituted by an application for a writ of habeas 

corpus by a person in custody pursuant to the judgment of a State 

court, a determination of a factual issue made by a State court shall 

be presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing 

evidence. 

28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state 

court's decision was contrary to or an unreasonable application of clearly established federal law, 

or based on an unreasonable determination of the facts in light of the evidence that was 

presented. 

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be 

granted with respect to any claim that was adjudicated on the 

merits in State court proceedings unless the adjudication of the 

claim- 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

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(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the 

State court proceeding. 

28 U.S.C. § 2254(d). In order to obtain habeas corpus relief, a petitioner must show that the state 

court's decision was “so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” Bobby v. 

Dixon, -- U.S. -- , 132 S.Ct. 26, 2011 WL 5299458, at *1 (Nov. 7, 2011) (quoting Harrington v. 

Richter, 562 U.S.-- --, 131 S.Ct. 770, 786–87 (2011)). This bar is “difficult to meet” because 

“habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ 

not a substitute for ordinary error correction through appeal.” Harrington, 131 S.Ct. at 786 

(quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in 

judgment)). In short, “[a] state court's determination that a claim lacks merit precludes federal 

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's 

decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner has 

failed to meet this standard here. 

Petitioner's claim that his convictions are against the manifest weight of the evidence fails 

to present an issue appropriate for federal habeas corpus review. The Due Process Clause does 

not provide relief for defendants whose convictions are against the manifest weight of the 

evidence, but only for those who have been convicted without enough proof to allow a rational 

trier of fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 

1983). In the context of a claim alleging a violation of due process, “sufficiency of the evidence” 

refers to the due process requirement that there be enough evidence introduced in favor of the 

prosecution for a rational trier of fact to find each element of the crime beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing a sufficiency of the evidence 

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claim, a federal habeas court must defer to the trier of fact with respect to issues of conflicting 

testimony, weight of the evidence, and the credibility of the witnesses. Jackson, 443 U.S. at 319; 

Walker, 703 F.2d at 969. 

However, under Ohio law, a claim that a verdict was against the manifest weight of the 

evidence-as opposed to one based upon insufficient evidence-requires the appellate court to act 

as a “thirteenth juror” and review the entire record, weight the evidence, and consider the 

credibility of witnesses to determine whether “the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” 

State v. Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31(1982). Since 

a federal habeas court does not function as an additional state appellate court, vested with the 

authority to conduct such an exhaustive review, any claim that petitioner's conviction was 

against the manifest weight of the evidence cannot be considered by this Court. 

Petitioner does assert that the evidence was constitutionally insufficient to sustain his 

conviction. Before a criminal defendant can be convicted consistent with the United States 

Constitution, there must be sufficient evidence to justify a reasonable trier of fact to find guilt 

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. ta 319. To determine whether the 

evidence was sufficient to support a conviction, this Court must view the evidence in the light 

most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 

319.) The prosecution is not affirmatively required to “rule out every hypothesis except that of 

guilty.” Id. (quoting Jackson, at 326). “[A] reviewing court ‘faced with a record that supports 

conflicting inferences must presume-even if it does not appear on the record-that the trier of fact 

resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’ ” Id. 

(quoting Jackson, at 326). For the reasons discussed by the state appellate court, this Court 

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likewise concludes that, when viewing all of the evidence in the light most favorable to the 

prosecution, see Jackson v. Virginia, the evidence was constitutionally sufficient to sustain 

petitioner's conviction. 

Under the AEDPA, a state court's determination regarding a sufficiency of evidence 

claim is entitled a “double layer” of deference. As explained in Brown v. Konteh, 567 F.3d 191, 

205 (6th Cir.2009), deference is due to the jury's finding of guilt because the standard, 

announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits in the 

light most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Even if a de novo review of the evidence 

leads to the conclusion that no rational trier of fact could have so found, a federal habeas court 

“must still defer to the state appellate court's sufficiency determination as long as it is not 

unreasonable.” See also White v. Steele, 602 F.3d 707, 710 (6th Cir.2009). This is a substantial 

hurdle for a habeas petitioner to overcome, and for the reasons discussed by the state appellate 

court, Petitioner has failed to do so here. 

 Claim one is without merit. 

Claim Two: 

In claim two, Petitioner asserts he was denied a fair trial and his right to be present during 

a critical stage of the proceedings, when the jury asked questions during deliberations. Again, 

Respondent argues that Petitioner procedurally defaulted this claim by failing to timely appeal to 

the Ohio Supreme Court. For the reasons previously discussed, this Court is not so persuaded. 

 The state appellate court rejected Petitioner’s claim in relevant part as follows: 

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[A]ppellant claims that his constitutional rights were violated 

when he was not present for two critical proceedings during jury 

deliberations. Both proceedings involve questions sent by the 

jury to the judge during deliberations. One question asked, “Can 

jury be hung on half the charges and not the other half of the 

charges?” The trial transcript indicates the word “yes” was 

written on the question and sent back to the jury but, according to 

appellant, does not indicate who wrote the answer or whether 

counsel was present. The second question asked, “Does Count 2 

require mouth contact to vagina only or can it include mouth to 

other parts of body?” The trial transcript is silent as to the content 

of the answer and whether counsel was present when the court 

answered the question. Regarding both questions, appellant 

asserts that he was not present when the questions were sent to 

the judge by the jury, nor when the questions were answered. 

“[A] defendant ‘has a fundamental right to be present at all 

critical stages of his criminal trial.’ * * * However, the right to be 

present is not absolute. * * * Therefore, even if a defendant 

should have been present at a stage of the trial, ‘errors of 

constitutional dimension are not ipso facto prejudicial.’ * * * 

Prejudicial error exists only where ‘a fair and just hearing [is] 

thwarted by [defendant's] absence.’ * * * ” State v. White, 82 

Ohio St.3d 16, 26, 1998-Ohio-363 (citations omitted). 

After the instant appeal was filed, we granted the state's motion 

for leave to supplement the record, pursuant to App.R. 9(E), with 

a transcript of a hearing held on July 28, 2010. The purpose of 

that hearing was to address the trial court's procedure regarding 

the two jury questions at issue. The state filed the transcript on 

September 13, 2010. 

At the hearing, the trial judge stated that “[i]n every instance, 

without exception, [he] spoke to both counsel. In every instance, 

[he] summoned counsel for prosecution and defense to come 

back to the courtroom so that we could discuss the question.” 

(Hearing Tr. 13.) The judge further stated that each time 

appellant's counsel waived his presence and all counsel agreed on 

the answers that were submitted to the jury. With respect to the 

jury question that asked, “Can jury be hung on half the charges 

and not the other half of the charges?” the judge stated that he 

wrote the word “yes” on the question and sent it back to the jury. 

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Regarding the other question, “Does Count 2 require mouth 

contact to vagina only or can it include mouth to other parts of 

body?” the judge explained that, after speaking with counsel, all 

of whom agreed that the answer should be that the jury should 

refer back to the jury instructions for the answer, he went into the 

jury room and advised the jury of the same. The judge also noted 

that neither counsel for the state nor counsel for appellant 

objected to the foregoing. 

Megan Jewett, the assistant prosecuting attorney that tried the 

case, also testified at the hearing. Ms. Jewett's recollection was 

identical to that of the trial judge: she testified that appellant's 

counsel waived appellant's presence, all counsel agreed on the 

answers to the jury's questions, and that no party objected to the 

judge verbally advising the jury that they needed to refer back to 

the jury instructions to answer the last question. 

Appellant's trial counsel, Joseph Edwards, testified at the hearing. 

Mr. Edwards could not recall whether he specifically waived his 

client's presence but stated that he did not believe he deviated 

from his usual practice, which was that he usually did not discuss 

jury questions with clients, especially since the questions posed 

by the jury were simple. Mr. Edwards stated that he may have 

even suggested the answers to the questions and that, although he 

could not recall whether he agreed to the judge going back to the 

jury room to advise the jury, he testified that he would have no 

reason to object to that procedure. Mr. Edwards also testified that 

he believed the answers submitted to the jury were legally 

correct. 

Based on the foregoing, we find no violation of appellant's 

fundamental rights. It is well-accepted that counsel may waive a 

client's presence. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio3426, ¶ 134. Here, both the trial judge and Ms. Jewett recall that 

Mr. Edwards waived appellant's presence. Although Mr. Edwards 

could not recall whether he had specifically waived appellant's 

presence, Mr. Edwards testified that, given the simple nature of 

the questions, he did not believe that he would have deviated 

from his usual practice in this instance. Most significant, perhaps, 

is that Mr. Edwards did not state that he did not waive appellant's 

presence. “Moreover, the Supreme Court of Ohio has stated that a 

trial court's written response to a jury question is not a critical 

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stage of the criminal proceeding, and a defendant's constitutional 

rights are not violated when he is absent during the conference 

regarding the court's response to the jury questions.” State v. 

Everette, 2d Dist. No. 22838, 2009-Ohio-5738, ¶ 15 (internal 

citations omitted). 

Accordingly, appellant's second assignment of error is overruled. 

State v. Martin, 2010 WL 4968638, at *7-8. 

 Again, the findings of a state appellate court are presumed to be correct. Further, this 

Court cannot grant federal habeas corpus relief unless the state court’s decision was contrary to, 

or an unreasonable application of federal law, as determined by the United States Supreme 

Court, or based on an unreasonable determination of the facts in light of the evidence presented. 

28 U.S.C. 2254(d), (e). Petitioner has failed to meet this standard here. 

 The United States Court of Appeals for the Sixth Circuit has held that the trial court’s 

issuance of a supplemental jury instruction constitutes a critical stage of the proceedings. 

Peoples v. Lafler, -- F.3d --, 2013 WL 5811601, at *13 (6th Cir. 2013)(citation omitted). Not 

every statement to the jury, however, is considered a critical stage instruction. Id. For example, 

a trial court's re-reading of the jury instructions already issued does not constitute a critical stage 

jury instruction. Id. (citing Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003)). Additiolnally, 

the Constitution does not require the defendant to be present when ‘presence would be useless or 

the benefit but a shadow.’” Cathron v. Jones, 190 F.Supp.2d 990, 1001 (E.D.Mich.2002) 

(quoting Snyder v. Massachusetts, 291 U.S. 97, 106–07 (1934), overruled on other grounds by 

Malloy v. Hogan, 378 U.S. 1 (1964). 

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The state appellate court did not unreasonably determine that Petitioner failed to establish 

any prejudice under the circumstances of this case. Moreover, the United States Supreme Court 

has not determined whether the answering of jury questions constitutes a critical stage of the 

proceedings at which a criminal defendant is constitutionally entitled to be present. Therefore, 

Petitioner cannot establish that habeas corpus relief is warranted on this claim. Lopez v. 

Hernandez, 2010 WL 2764699, at *7 (N.D.Cal. July 13, 2010) (citing La Crosse v. Kernan, 244 

F.3d 702, 707–08 (9th Cir. 2001)). 

 Claim two is without merit. 

Claim Three: 

In claim three, Petitioner asserts that the trial court erred by not making factual findings 

prior to imposition of consecutive sentences. The state appellate court rejected this claim as 

follows: 

[A]ppellant contends the trial court erred in imposing consecutive 

sentences without making findings in accordance with R.C. 

2929.14(E)(4). In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio856, the Supreme Court of Ohio declared that R.C. 2929.14(E)(4), 

which directed trial courts to make specified findings of fact before 

imposing consecutive sentences, was unconstitutional based on the 

United States Supreme Court's decision in Blakely v. Washington

(2004), 542 U.S. 296, 124 S.Ct. 2531. Therefore, in Foster, the 

Supreme Court of Ohio severed R.C. 2929.14(E), resulting in the 

ability of trial courts to impose consecutive sentences without 

making any findings of fact. State v. Houston, 10th Dist. No. 

06AP-662, 2007-Ohio-423. 

On appeal, appellant argues the United States Supreme Court's 

recent decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 

711, effectively overruled Foster, resulting in a resurrection of 

R.C. 2929.14(E). As recently stated by this court in State v. Nuh, 

10th Dist. No. 10AP-31, 2010-Ohio-4740, “[t]his court, 

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acknowledging Ice, concluded that because the ‘Supreme Court of 

Ohio has not reconsidered Foster * * * the case remains binding on 

this court.’” Id. at ¶ 11, quoting State v. Franklin, 182 Ohio 

App.3d 410, 2009-Ohio-2664, ¶ 18. “Indeed, this court has 

recognized on several occasions that we are bound to follow Foster 

until the Supreme Court of Ohio directs otherwise.” Id., citing 

State v. Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554, ¶ 33; 

State v. Russell, 10th Dist. No. 09AP-428, 2009-Ohio-6420, ¶ 16; 

State v. Crosky, 10th Dist. No. 09AP-57, 2009-Ohio-4216, ¶ 8; 

State v. Potter, 10th Dist. No. 09AP-580, 2010-Ohio-372, ¶ 8. 

Accordingly, we find appellant's arguments unpersuasive and 

overrule his third assignment of error. 

State v. Martin, 2010 WL 4968638, at *8-9. 

“[T]he Supreme Court explicitly held in Ice that the imposition of consecutive sentences 

does not implicate constitutional concerns under the Sixth Amendment[.]” Scott v. Warden,

Southern Correctional Facility, No. 1:12-cv-118, 2013 WL 2096641, at *6 (S.D. Ohio May 14, 

2013). The Supreme Court held in Ice that “the choice whether to impose sentences 

consecutively or concurrently is a matter that has historically rested ‘exclusively’ with the 

sentencing judge and. . . that ‘the prevailing practice’ of judges has been” imposition of consecutive, rather than concurrent, sentences. Id. (citing Ice, 555 U.S. at 168–69). Therefore, 

Petitioner’s claim raises an issue of state law only that is not appropriate for federal habeas 

corpus relief. Ice, 555 U.S. at 169–70. 

All agree that a scheme making consecutive sentences the rule, and 

concurrent sentences the exception, encounters no Sixth 

Amendment shoal. To hem in States by holding that they may not 

equally choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither 

Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000),] nor our Sixth Amendment traditions compel 

straitjacketing the States in that manner. 

Ice, at 171 (emphasis added). 

 Claim three is without merit. 

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Claims Four through Eight: 

 Respondent contends that Petitioner has failed to fairly present claims waived claims 

Four through Eight to the Ohio courts; and, consequently, those claims cannot be considered in 

federal habeas corpus. 

 In recognition of the equal obligation of the state courts to protect the constitutional rights 

of criminal defendants, and in order to prevent needless friction between the state and federal 

courts, a state criminal defendant with federal constitutional claims is required fairly to present 

those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he 

fails to do so, but still has an avenue open to him by which he may present the claims, his 

petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 

U.S. 4, 6 (1982) ( per curiam ); Picard v. Connor, 404 U.S. 270, 275–76 (1971). If he can no 

longer present his claims to a state court, he has waived them for federal habeas review unless he 

can demonstrate cause for the procedural default and actual prejudice from the alleged 

constitutional error. Murray v. Carrier, 477 U.S. 478, 485 397 (1986); Engle v. Isaac, 456 U.S. 

107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). 

In the Sixth Circuit, the Court considers the following to determine whether a federal 

habeas claim is precluded due to the Petitioner's failure to observe a state procedural rule: “First, 

the court must determine that there is a state procedural rule that is applicable to the Petitioner's 

claim and that the petitioner failed to comply with the rule.” Maupin v. Smith, 785 F.2d 135, 138 

(6th Cir. 1986). Second, the Court must determine whether the state courts actually enforced the 

state procedural sanction. Id. Third, the Court must determine whether the state procedural 

forfeiture is an ‘adequate and independent’ state ground on which the state can rely to foreclose 

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review of a federal constitutional claim. Id. Finally, if the Court determines that the petitioner 

failed to comply with an adequate and independent state procedural rule, Petitioner must 

demonstrate cause for his failure to follow the State's procedural rule as well as actual prejudice 

from the alleged constitutional error. Id. 

In claim four, Petitioner asserts he was denied effective assistance of trial counsel. In 

claim five, Petitioner asserts he was denied a fair trial because the trial court abused its 

discretion. In claim six, Petitioner asserts he was denied a fair trial based on police misconduct. 

In claim seven, Petitioner asserts he was denied a fair trial due to prosecutorial misconduct. 

These claims, being readily apparent from the face of the record should have been raised on 

direct appeal but were not.2

 Moreover, Petitioner may now no longer do so under Ohio's 

doctrine of res judicata. State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 

16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). 

Ohio's res judicata rule is adequate and independent under the third part of the Maupin 

test. To be “independent,” the procedural rule at issue, as well as the state court's reliance 

thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732–33 

(1991). To be “adequate,” the state procedural rule must be firmly established and regularly 

followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established 

and regularly followed state practice’ may be interposed by a State to prevent subsequent review 

by this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 

341, 348–351 (1984)). See also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. 

                                                            

2 Petitioner’s trial attorney did not represent him on direct appeal. Consequently, any claims for ineffective

assistance of counsel apparent on the face of the record could have been raised on direct appeal. Cole, 2 Ohio St.

3d 112, 114 (1982). Any claims depending on facts outside the record should have been presented in

postconviction.

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Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 

521, 561 (S.D. Ohio 1998). The Sixth Circuit has consistently held that Ohio's doctrine of res 

judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren 

v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th 

Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 

521–22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). The doctrine of 

res judicata is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have 

consistently refused, in reliance on that doctrine, to review the merits of habeas claims. See State 

v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169; State v. Ishmail, 67 Ohio St.2d 16. Further, the 

doctrine of res judicata serves the state's interest in finality and in ensuring that claims are 

adjudicated at the earliest possible opportunity. With respect to the independence prong, the 

Court concludes that the procedural rule of res judicata does not rely on or otherwise implicate 

federal law. Therefore, Petitioner has waived claims four through eight for federal habeas corpus 

review. 

Petitioner may still obtain review of these claims on the merits if he establishes cause for 

his procedural default, as well as actual prejudice from the alleged constitutional violations. 

“ ‘Cause’ under the cause and prejudice test must be something 

external to the petitioner, something that cannot fairly be attributed 

to him [;] ... some objective factor external to the defense [that] 

impeded ... efforts to comply with the State's procedural rule.” 

Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 

L.Ed.2d 640 (1991). 

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Petitioner has failed to meet this standard 

here. Nothing in the record indicates that any external factor impeded Petitioner's ability to file a 

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direct appeal regarding ineffective assistance of counsel or matters related to the indictment. The 

fact that res judicata now bars his claims, therefore, is attributable only to him. 

Beyond the four-part Maupin analysis, this Court is required to consider whether this is 

“an extraordinary case, where a constitutional violation has probably resulted in the conviction of 

one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 

505 U.S. 333. 

[I]f a habeas petitioner “presents evidence of innocence so strong 

that a court cannot have confidence in the outcome of the trial 

unless the court is also satisfied that the trial was free of 

nonharmless constitutional error, the petitioner should be allowed 

to pass through the gateway and argue the merits of his underlying 

claims.” Schlup, 513 U.S. at 316, 115 S.Ct. 851, 130 L.Ed.2d 808. 

Thus, the threshold inquiry is whether “new facts raise [ ] sufficient doubt about [the petitioner's] guilt to undermine confidence in 

the result of the trial.” Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 

L.Ed.2d 808. To establish actual innocence, “a petitioner must 

show that it is more likely than not that no reasonable juror would 

have found petitioner guilty beyond a reasonable doubt.” Id. at 

327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has 

noted that “actual innocence means factual innocence, not mere 

legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 

118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To be credible, such a 

claim requires petitioner to support his allegations of constitutional 

error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 

evidence-that was not presented at trial.” Schlup, 513 U.S. at 324, 

115 S.Ct. 851, 130 L.Ed.2d 808. The Court counseled however, 

that the actual innocence exception should “remain rare” and “only 

be applied in the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 

115 S.Ct. 851, 130 L.Ed.2d 808. 

Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (footnote omitted). Petitioner does not assert 

actual innocence, and the record fails to reflect these circumstances here. 

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Because he has failed to establish cause and prejudice for his procedural default, 

Petitioner has waived claims four through eight for federal habeas corpus review. 

 WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. 

Procedure on Objections: 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse decision, they 

 

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may submit arguments in any objections filed, regarding whether a certificate of appealability 

should issue. 

         s/Mark R. Abel      

 United States Magistrate Judge 

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